Garcia v. Kubosh

• Decision Date: 18 June 2012
• Docket Number: No. 01–11–00315–CV.,01–11–00315–CV.
• Citation: 377 S.W.3d 89
• Parties: Adrian GARCIA, in his Official Capacity as Harris County Sheriff, and Greg Abbott, in his Official Capacity as Attorney General of Texas, Appellants v. Felix Michael KUBOSH and Carl R. Pruett, Appellees.
• Court: Texas Court of Appeals

377 S.W.3d 89

Adrian GARCIA, in his Official Capacity as Harris County Sheriff, and Greg Abbott, in his Official Capacity as Attorney General of Texas, Appellants

v.Felix Michael KUBOSH and Carl R. Pruett, Appellees.

No. 01–11–00315–CV.

Court of Appeals of Texas,

Houston (1st Dist.).

June 18, 2012.

Erika M. Kane, Austin, TX, Fred A. Keys Jr., Harris County Attorney's Office, Houston, TX, for Appellant.

David A. Furlow, Thompson & Knight L.L.P, Houston, TX, for Appellee.

Panel consists of Justices HIGLEY, SHARP, and BROWN.

OPINION

HARVEY BROWN, Justice.

Felix Michael Kubosh and Carl R. Pruett, both bail bondsmen, sued Harris County Sheriff Adrian Garcia and Texas Attorney General Greg Abbott, challenging the constitutionality of a statutorily-imposed fee on sureties who post bail bonds. After the trial court dismissed their original lawsuit for want of prosecution, the bondsmen initiated the bill of review proceeding from which this interlocutory appeal arises.¹ The Sheriff and Attorney General contend the trial court lacks jurisdiction over the bill of review proceeding because (1) the bondsmen failed to make a prima facie showing of a meritorious claim in their bill of review petition and (2) the doctrines of standing and sovereign immunity bar the bondsmen's claim. We reverse and remand with instructions that the bondsmen's surviving claim be dismissed for want of jurisdiction.

Background

Section 41.258 of the Government Code requires all sureties posting a bail bond to pay a fee of $15 per bond, not to exceed $30 for all bail bonds posted for one individual at one time.²Tex. Gov't Code Ann. § 41.258 (West 2011). The $15 fee applies to all offenses except class C misdemeanors, which are punishable by fine only. Id. § 41.258(b). The $15 fee is refundable if the state declines to prosecute or the grand jury fails to indict the individual. Id. § 41.258(f). The court, judge, magistrate, peace officer, or other officer imposing the bail bond is responsible for collecting the $15 fee, which is initially deposited into the county treasury. Id. § 41.258(b), (c). The funds collected by the counties are sent to the Comptroller on a quarterly basis, with each county being allowed to retain ten percent of its funds and all of the interest on its funds. Id. § 41.258(e)(2), (g).

The Comptroller then deposits two-thirds of the funds into the “assistant prosecutor supplement fund” and one-third of the funds into the “fair defense account.” Id. § 41.258(i). The “assistant prosecutor supplement fund” provides longevity salary supplements for eligible felony prosecutors; the “fair defense account” funds the Texas Indigent Defense Commission and the Office of Capital Writs. SeeTex. Gov't Code Ann. § 41.255 (West 2011) (describing assistant prosecutor supplement fund); Tex. Gov't Code Ann. § 79.031 (West Supp.2011) (describing fair defense account). At the end of each fiscal year, the Comptroller may transfer any unexpended amounts in excess of $1.5 million to the general revenue fund. Id.§ 41.258(j).

In their original lawsuit, the bondsmen and a former criminal defendant, Daisy Howard,³ challenged section 41.258 on federal and state constitutional grounds, requesting declaratory and injunctive relief. After more than three years of inactivity, the trial court dismissed the suit for want of prosecution. The bondsmen did not seek a new trial or appeal the dismissal order. Instead, they timely petitioned the trial court for a bill of review, alleging that they did not receive notice of the dismissal hearing. In the bill of review proceeding, the bondsmen again sought declaratory and injunctive relief, alleging violations of (1) their federal constitutional rights to freedom to petition and speak, equal protectionand due process of law, and protection against excessive bail and (2) their state constitutional rights to open courts and protection against excessive bail, equal rights and due course of law, and (3) separation of powers.⁴

In a combined summary judgment motion and plea to the jurisdiction, the Sheriff and Attorney General sought the dismissal of the case for lack of standing and the failure to state a claim as a matter of law. The trial court denied the combined motion with respect to the bondsmen's due process claim ⁵ and granted the motion “in all other respects.” Specifically, the trial court determined that Howard, who was not obligated to pay the $15 fee, had no standing to challenge the fee's constitutionality, and the bondsmen did not have “third party” standing to challenge the fee on behalf of Howard and other criminal defendants. The trial court then observed that the bondsmen had only one claim based on traditional, rather than “third party,” standing: “a claim under the Texas and U.S. Constitutions that they were being deprived of their tangible property—the $15 [fee]—without due course or process of law by operation of the statute.” The trial court denied the combined motion with respect to this claim only:

[The Sheriff and Attorney General's] Motion is DENIED with respect to [the bondsmen's] claims for deprivation of property without due course or due process of the law. This Court DECLINES to rule on [the bondsmen's] claim that [the $15 fee] constitutes an unconstitutional occupation tax under Art. III[sic] § 3 and Art. VIII § 2 of the Texas Constitution. [The Sheriff and Attorney General's] Motion is GRANTED in all other respects.

The Sheriff and Attorney General appeal the trial court's denial of their jurisdictional challenge to the bondsmen's due process claim; ⁶ the bondsmen do not appeal the trial court's dismissal of their remaining claims.

Interlocutory Jurisdiction

The Sheriff and Attorney General challenge the trial court's jurisdiction on two grounds: standing and sovereign immunity. As preliminary matter, we must determine whether we have interlocutory jurisdiction ⁷ over the sovereign-immunity-based challenge, which was not considered by the trial court and is not the subject of the trial court's appealed-from order.⁸

Section 51.014(a)(8) of the Civil Practices and Remedies Code grants this Court interlocutory jurisdiction over “an interlocutory order of a district court” that “grants or denies a [governmental unit's] plea to the jurisdiction.” Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(8) (West Supp.2011). This Court has interpreted section 51.014(a)(8) as granting interlocutory jurisdiction over newly-raised challenges to a trial court's subject-matter jurisdiction over the case in which the appealed-from order was issued. Harris Cnty. Mun. Util. Dist. No. 156 v. United Somerset Corp., 274 S.W.3d 133, 137 (Tex.App.-Houston [1st Dist.] 2008, no pet.) (observing that challenges to subject-matter jurisdiction generally may be raised for the first time on appeal). Thus, in this interlocutory appeal, we consider the Sheriff and Attorney General's contention that sovereign immunity from suit deprives the trial court of subject-matter jurisdiction over the bondsmen's surviving claim. Because our holding on this issue is dispositive, we do not reach the issue of standing.

Standard of Review

Subject-matter jurisdiction is essential to the authority of a court to decide a case and is never presumed. Tex. Ass'n of Bus., 852 S.W.2d at 443–44;Austin & N.W.R. Co. v. Cluck, 97 Tex. 172, 77 S.W. 403, 405 (Tex.1903) (“[T]here can be no doubt that the courts of Texas must look to the Constitution of this state, the enactments of the Legislature, and the common law for their authority to proceed[.]”). The existence of subject-matter jurisdiction is a question of law, which we must decide de novo. See State Dep't of Highways & Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex.2002).

When, as here, the jurisdictional challenge is to the pleadings, “we determine if the pleader has alleged facts that affirmatively demonstrate the court's jurisdiction to hear the cause.” Miranda, 133 S.W.3d at 226;see also State v. Holland, 221 S.W.3d 639, 642 (Tex.2007) (instructing courts to first review “the plaintiff's petition to determine whether the facts pled affirmatively demonstrate that jurisdiction exists”); Tex. Ass'n of Bus., 852 S.W.2d at 446 (explaining that plaintiff has burden to allege facts affirmatively demonstrating trial court's subject-matter jurisdiction). We construe the pleadings liberally, looking to the pleader's intent. Villarreal v. Harris Cnty., 226 S.W.3d 537, 541 (Tex.App.-Houston [1st Dist.] 2006, no pet.). If the pleadings lack sufficient facts to affirmatively demonstrate the trial court's jurisdiction but do not reveal incurable jurisdictional defects, courts should afford the plaintiff an opportunity to re-plead. Miranda, 133 S.W.3d at 226–27. Conversely, if the pleadings affirmatively negate the existence of jurisdiction, then the plea should be sustained and the cause dismissed without an opportunity to re-plead. Id. at 227;see also Harris Cnty. v. Sykes, 136 S.W.3d 635, 639 (Tex.2004) (“A trial court must grant a plea to the jurisdiction ... when the pleadings do not state a cause of action upon which the trial court has jurisdiction.”).

Immunity from Suit

Under the doctrine of sovereign immunity, parties may not sue the sovereign without its consent. See Tooke v. City of Mexia, 197 S.W.3d 325, 331 (Tex.2006). “Although this rule was originally justified by the fiction that ‘the king can do no wrong,’ in modern times its ‘purpose is pragmatic: to shield the public from the costs and consequences of improvident actions of their governments[.]’ ” City of Houston v. Williams, 353 S.W.3d 128, 134 (Tex.2011) (citations omitted). Sovereign immunity has two components: (1) immunity from suit, which deprives a trial court of subject-matter jurisdiction over a suit to which the State has not consented, and (2) immunity from liability, which protects the State from judgments against it even when it has consented to suit. See City of Dallas v. Albert, 354 S.W.3d 368, 373 (Tex.2011); ...